Saturday, July 24, 2010

Z-mail: Why federal juries convict so many defendants

By all fair-minded accounts, the government's case (against Rod Blagojevich) is not a home run. Nevertheless, I would be shocked beyond belief if he were acquitted. Federal juries for some reason feel compelled to convict regardless of the evidence.

My reply --

My sense is that many of the "fair-minded" accounts from those who have followed the case closely indicate that the government has put on strong and sufficient evidence to prove most if not all of the 24 counts against Blagojevich. Opinions certainly vary.

The "some reason" that federal juries return convictions in so many of these public corruption cases ought to be no source of confusion or vexation to you.

The compulsion they feel is to follow the law as it is given to them. The guilty verdicts arise because the proven facts in the case establish violations of federal law beyond a reasonable doubt.

You may absorb media accounts and think, "What? There was no explicit swap of cash for favors! Where's my smoking gun?" But responsible jurors - and my view is that most of them are -- actually follows the jury instructions that are based on the wording of the federal law. They then compare that to all the evidence they've heard sitting in the courtroom for six weeks. They convict in more than 90 percent of the cases. Not "regardless" of the evidence, but because of it.

By the way, though you didn't use the words "smoking gun" here -- I did -- it's worth pointing out to those who have used this metaphor to critique the prosecution that it's a very, very rare murder case -- even home runs or
slam dunk prosecutions -- that has even close to a "smoking gun," if by that image you mean a defendant who has been apprehended or photographed during or after the fact with the murder weapon in hand.

Most cases are built on circumstantial evidence, which is not at all necessarily weak evidence, as I explained in the 1995 column reprinted below. What's unusual about the case against Blagojevich, in fact, is the amazing amount of direct evidence in the form of FBI wiretap recordings.

Despite bad press, circumstantial can be quite substantial

Eric Zorn column, July 13, 1995

The case against O.J. Simpson is entirely circumstantial. And therefore, according to an alarming number of those who offer their sentiments on talk radio and electronic bulletin boards, worthless.

"We've come to the point in language where people use the term 'circumstantial' as if were synonymous with 'bad,' or 'planted,' " said WLS radio host Roe Conn, who spars daily with "O.J.-is-innocent" partisans on his nationally syndicated, call-in program devoted exclusively to the case. "I tell them that's not necessarily true. This seems to confuse them."

So I write today not to critique or support the prosecution's case against Simpson, but to defend the honor of circumstance, a reliable friend in everyday life that does not deserve the scorn it gets.

First, a primer: The two major categories of legal evidence are direct evidence and circumstantial evidence.

Direct evidence includes testimony from witnesses to or victims of a crime, testimony from those who have heard a defendant make incriminating statements, or testimony from a defendant himself.

For example, if a witness named Apu says, "I saw Flanders shoot Burns," the jurors need only believe Apu's story to conclude that Flanders shot Burns.

Circumstantial evidence, which includes virtually all other evidence, requires an additional logical step-an inference.

For example, if the only evidence is testimony that Flanders' fingerprints were on the gun found next to the body, that spatterings of Burns' blood were on Flanders' shirt, that Flanders had a history of assaults upon Burns and that Flanders had no alibi, jurors must both believe that testimony and draw a damning inference from it to conclude that Flanders shot Burns.

Such logical steps are not necessarily wild leaps. Loyola University law professor James Carey, who teaches evidence, said that when witnesses tell inconsistent or incredible stories, as often happens, or when confessions appear dubious or coerced, circumstantial evidence can be far more compelling and persuasive than direct evidence.

" 'Circumstantial' doesn't have to equal 'weak,' " Carey said. "But it does give the defense the opportunity to argue for alternative implications of the evidence, to create a hypothesis for innocence."

Flanders was framed! The seemingly incriminating facts are the result of foul conspiracy and odd coincidence!

Circumstantial evidence has a bad name -- perhaps from Hollywood courtroom dramas, Carey said -- but it helps us draw good conclusions all the time. When you wake up, look out your window and see a fresh blanket of snow over the neighborhood, your belief that snow fell from the sky the previous night is based solely on circumstance. Similarly, the sound of a doorbell or a dial tone, the sight of your spouse under the covers with the meter reader or the smell of brewing coffee tell you things upon which you may safely depend.

Francis Scott Key began to write the words to our national anthem after making a triumphant conclusion based on the circumstantial observation that "our flag was still there" over Ft. McHenry.

Nineteenth Century European astronomers discovered Neptune through circumstantial evidence. By charting irregularities in the orbit of Uranus, they predicted the new planet's location before they ever saw it. Astronomers early in this century found Pluto the same way, locating it more than a decade before they found it in a telescope.

On a smaller scale, pioneering physicists identified the massless, sub-atomic particle known as the neutrino in the early 1930s using circumstantial evidence (seen during beta decay, if you must know), but didn't detect it directly until 1956.

And to this day, our only evidence for the existence of such things as electrons, protons, neutrons, eclipsing binary stars and black holes remains circumstantial.

But if on O.J. Simpson's behalf you still wish to use the word "circumstantial" as a blanket, argument-ending negative, consider this: Assuming he doesn't testify, the evidence offered to show O.J.'s innocence will be entirely circumstantial as well.

Comments

You can follow this conversation by subscribing to the comment feed for this post.

There's that old saying "Don't make a federal case out of it".

Generally, the feds don't seem to bring picayune cases to court. Or maybe they do & we just don't hear about it.
Which is the point. When someone gets stuck on a federal jury, they feel it's important, not like some two bit dental malpractice case in the Daley Center where the plaintiff was asking for 10 grand. I wasn't on the jury, but was there for a different reason. I don't remember who the judge was, but I have no respect for him after he allowed the defense lawyer numerous & absurd objections to a simple question on a witness's bona fides & finally allowed the original question after yet another objection. No wonder I'm not a lawyer, there wasn't a damn thing wrong with the question, it was just the lawyer trying to upset the apple cart. The case was settled just after that. It never should have even gone to court!

I've also watched criminal & housing trials & hearings as a community member at Belmont?Western & the Daley Center. Cases stretched out interminably in an insane attempt to derail the prosecutors.
The one time I watched in federal court, the judge just didn't allow that crap to happen!
There seems to be a much higher standard by the federal judges to uphold some sort of dignity that the wretched Cook County judges, many of whom are flat out political hacks, let flourish.

I must be gaining influence in the world since I was able to inspire you to address my comment. I totally understand your point. But I'm not one to form my opinion strictly based on media accounts. It provides a base of information that when compared to other sources of information and life experiences helps to form a somewhat educated opinion. Again, many supposedly well regarded pundits have maintained that this case is not heavy in strong evidence against the ex-Governor actually committing a crime. Many other well regarded pundits have said that the feds have put on a strong case. I'm saying split the difference, and it doesn't matter because these federal criminal juries convict over 9 of 10 times.

Against criticism that cases were based on circumstantial evidence, Patrick Fitzgerald once responded: "People now know that if you're part of a corrupt conduct, where one hand is taking care of the other and contracts are going to people, you don't have to say the word 'bribe' out loud.... And I think people need to understand we won't be afraid to take strong circumstantial cases into court."

I have followed Fitzgerald's cases for a long time, and it seems to me he rarely if ever brings charges he believes will not be proven in court. The Valerie Plame case is a good example. He didn't go after Cheney or Rove because he didn't have the evidence to convict them, but he sure had Scooter Libby.

In this case, much of the direct evidence came from Blagojevich's own mouth, supported by witnesses already convicted of related crimes. In looking at and understanding the counts against him, I find it hard to believe he'll walk.

The most fitting punishment for Blago would be to make it so he can't earn a penny for telling his story (television interviews, books, public speaking, etc.). Yeah, I know it's probably not possible, but wouldn't that be delicious?

The public is predisposed to believe the worst. When Fitzgerald held his initial conference outlining the charges after Blago's arrest, I was in a hospital surgery waiting room packed with people. Everybody was cheering, thought Blago was a crook, etc. I did not hear one single soul there in the hours after that conference question that perhaps he might be innocent.

I think the one thing some miss in corruption cases, as opposed to violent crime cases, is who's the victim? The defense would like to portray Blagojevich as either the victim (not possible since he didn't testify) or the dupe of others, who should have warned him his actions were wrong. Failing that, he was just an A-hole.

The real victims are the people of Illinois, people he expressed a very clear opinion about. People represented by and consisting of the members of the jury. I think Blagojevich lost his case when the defense rested, when the jury reacted by looking directly at him after the motion. In more ways than one, he did exactly what he's heard saying on tape, he screwed us.

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
More about Eric Zorn

Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.